In separate rulings on Thursday, two federal courts had the same message for minority voters making credible claims of potential disenfranchisement: Your arguments may be good on the merits, but it’s too late. These courts, which were examining onerous voting rules in North Dakota and Kansas, took their cues from the U.S. Supreme Court, which has embraced an unfortunate rule that even serious voting problems cannot be remedied in the period before Election Day. Native American voters in North Dakota filed suit a while back over the state changing its voter-identification law to make it harder for Native American voters living on reservations and lacking a residential street address to be able to vote. A federal court, seeing that this law could disenfranchise up to 2,000 Native American voters, had blocked the requirement for use in the midterm elections, but the United States Court of Appeals for the 8th Circuit reversed. In reversing, the court said there was no proof yet that the law would actually disenfranchise Native American voters, who could potentially get residential street addresses assigned to them before the election. (The Supreme Court, over the dissents of Justices Ginsburg and Kagan, refused to intervene.) And the 8th Circuit order came with a promise: “If any resident of North Dakota lacks a current residential street address and is denied an opportunity to vote on that basis, the courthouse doors remain open.” That promise has now gone unfulfilled.
Native American voters went back to court, after it turned out that it was far harder for these voters to get a residential address than the state represented. As the New York Times reported, “North Dakota officials maintain that any voter without a residential address can obtain one easily from their county’s 911 coordinator. But the lawsuit identified multiple instances in which people were unable to obtain an address through that process; obtained one but were denied an absentee ballot because election officials deemed the state-issued address invalid; or were denied an absentee ballot because the address they had used for years could not be found in the state’s database.”
On Thursday, the same district judge who issued the original—and subsequently overturned—order barring the use of the residential addresses for voting denied plaintiffs’ request for emergency relief. The judge was very disturbed by the new allegations but said that under a 2006 Supreme Court precedent, Purcell v. Gonzalez, it was too late to give relief. As the judge noted, Purcell said that “court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”